UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KARL ELLIS-BEY,

Petitioner-Appellant,

vs.

L.E. BRUCE; CHARLES SIMMONS, Secretary of Corrections, Kansas Department of Corrections; J. FISCHER, Records Clerk, Ellsworth Correctional Facility; TERESA L. SAIYA, KPB Administrator,

Respondents-Appellees.

No. 97-3202

(	D.C. No. 1083-5:97-3259-GTV)

(D. Kan .)

ORDER AND JUDGMENT*

Before BRORBY, EBEL, and KELLY, Circuit Judges.**

Mr. Ellis-Bey, an inmate appearing pro se and in forma pauperis, appeals from the dismissal without prejudice of his habeas petition, 28 U.S.C. §2254,1 for failure to exhaust state remedies. The district court also denied Mr. Ellis-Bey's request for a certificate of appealability. See 28 U.S.C. § 2253(c)(1),(2).

Mr. Ellis-Bey contends that Defendants improperly aggregated his sentences in violation of Kan . Stat. Ann. § 22-3717(f) (Supp. 1993). However, the district court properly dismissed Mr. Ellis-Bey's claims without prejudice, as Mr. Ellis-Bey must exhaust state remedies available to him before a federal court will examine his claims. See 28 U.S.C. § 2254(b)(1)(A); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924 (1992). We accordingly DENY Mr. Ellis-Bey's motion for issuance of a certificate of appealability and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge